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Title Michael Darnell Thomas v. James Smith

February 12, 2013

TITLE MICHAEL DARNELL THOMAS
v.
JAMES SMITH, III, ET AL.



The opinion of the court was delivered by: Honorable Oswald Parada, United States Magistrate Judge

CIVIL MINUTES - GENERAL

Present: The Honorable Oswald Parada, United States Magistrate Judge

As assigned N/A N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

None None Proceedings: IN CHAMBERS: ORDER TO SHOW CAUSE; MOTION FOR

RECONSIDERATION (ECF No. 53)

I.

Proceedings

On or about February 16, 2007, Michael Darnell Thomas ("Plaintiff"), was arrested for a cocaine-related crime. On November 1, 2007, the United States Attorney's Office filed a criminal indictment charging Plaintiff with two criminal counts: Count 1, conspiracy to distribute cocaine and marijuana (21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B) and 841(b)(1)(D)); and Count 3, knowingly and intentionally possessing with the intent to distribute a mixture or substance containing a detectable amount of cocaine (21 U.S.C. §§ 841(a)(1) and (b)(1)(B)). (CR 07-1213-MMM ECF No. 1.)

On September 3, 2008, Plaintiff entered into a plea agreement with the United States. (Id. ECF No. 222.) On November 17, 2008, Plaintiff entered a guilty plea to Count 1 of the Indictment pursuant to the plea agreement. (Id. ECF No. 234.) As part of the plea*fn1 agreement, Plaintiff gave up his right to pursue any Fourth or Fifth Amendment claims and any other pretrial motions that were or could have been filed. (Id. at 5, 6.)

On or about March 23, 2009, the Court granted Plaintiff's request for new counsel, and appointed Dale Rubin to replace Errol Stambler. (Id. ECF No. 277.) The Court also vacated the sentencing hearing and instructed Plaintiff to advise the Court how he wished to proceed. (Id.)

Meanwhile, on May 1, 2009, Plaintiff filed a pro se Civil Rights Complaint pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) ("Complaint"), after having paid the requisite filing fee. (ECF No. 1.) In the Complaint, Plaintiff named as Defendants Federal Bureau of Investigation ("FBI") Special Agent James Smith, III, Plaintiff's former criminal attorney Errol Stambler, and Sprint Telecommunications. Plaintiff sought damages. (CV 09-3074 ECF No. 1.)

Although service of the Complaint was never authorized or ordered, on May 25, 2009, Defendant Stambler filed a Motion to Dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Id. ECF No. 7.) On June 18, 2009, Plaintiff filed an Opposition to the Motion to Dismiss. (Id. ECF No. 12.)

On August 17, 2010, the Court stayed the current action, including Defendant Stambler's Motion to Dismiss, pending resolution of Plaintiff's criminal case. The parties were ordered to inform the Court within seven days of the entry of a judgment of conviction or the entry of an order dismissing the pending criminal charges against Plaintiff. (Id. ECF No. 45.)

The Court's independent review of its computerized case management system, CM/ECF, revealed that on September 10, 2012, Plaintiff was sentenced on Count 1 of the Indictment to the custody of the Bureau of Prisons ...


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